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S. Kentridge, "Habeas Corpus Procedure in South Africa," South African Law Journal
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HABEAS CORPUS PROCEDURE IN SOUTH AFRICA
A
FURTHER COMMENT ON THE GANYILE CASE*
The May, 1962, issue of this Journal1 contained a note on the case
of Ganyile v. Minister of Justice and others2 by Mr. H. J. May, Q.C.
The note, although brief, is important because it raises issues relating
to the nature of habeas corpus procedure in South Africa. Mr. May
suggests that the judgment of the Eastern Cape Division upholding
an appeal from Wynne J. was incorrectly decided and that there
were defences which the State could have raised but did not.
It is submitted in this note that Mr. May's criticism of the judgment of the Eastern Cape Division is unfounded and may give rise
to unfortunate misconceptions as to the original and appeal
jurisdiction of South African courts in habeas corpus.
The facts of the case were summarized in an editorial note introducing Mr. May's comments, but certain salient feature6 may be
repeated.
The petition of Ganyile's uncle (the contents of which constituted
the only evidence before either court) showed that Ganyile had been
deported from the Transkei to Frenchdale in the Mafeking District
in terms of an order issued by the Minister of Bantu Affairs under
section 5 of the Native Administration Act, 1 9 2 7 a He had, according to the petition, escaped to Basutoland in breach of this order.
There, on 26th August, 1961, he was seized by South African policemen and removed to the Transkei. The petition alleged that he was
being unlawfully held in custody in the gaol at Kokstad by the third
and the fourth respondents, namely, the Commanding Officer of
the East London Prisons Command and the gaoler at Kokstad, under
the direction of the first and second respondents, namely the Minister
of Justice and the Commanding Officer, Transkei Command. The
order prayed in its essentials was an order that the respondents
*produce the body of the said Anderson Kumane Ganyile to the court
on a date and time to be fixed, and for a rule nisi calling upon the
respondents to show cause why Ganyile should not forthwith be
released from custody, alternatively why the respondents should not
furnish information to the court as to whether the said Ganyile
was under arrest, on what charge he was being arrested, where he
was being detained and why he was being detained. The Eastern
Cape Division accepted that it had been prima facie shown:
*.For a further critical note on Mr. H. J. May's comment on Ganyilk's case, see
below, p. 322.
179 S.A.L.J. 111.
2 1962 (1) S.A. 647
3
Act No. 38 of 1927.
(E).
284
THE SOUTH AFRICAN LAW JOURNAL
(a) that Ganyile had committed an offence by leaving Frenchdale;
and
(b)
that he was lodged in gaol on 26th August, 1961, and was
still- under detention.
'All that we know now prima facie is that Ganyile was arrested and
lodged in gaol on 26th August, 1961, that on 11th December, when
judgment was given, he was still in gaol prima facie, and is prima
facie still under detention today.
Where he is and what has happened
4
to him, we do not know.'
Furthermore, as de Villiers J.P. pointed out,5 if Ganyile had been
arrested on a criminal charge in August, 1961, he would presumably
long since have been brought before the courts and had his case
disposed of. On these facts the Eastern Cape Division held that a
rule should issue. The judgment was based on the simple ground
that there was prima facie proof of detention in circumstances which
called for explanation and justification from the detaining authority.
De Villiers J.P. referred to the judgment of Sir John Wessels in
the case of Principal Immigration Officer v. Narayansamy:6
'Apart from any legislative enactment there is an inherent right in
every subject, and in every stranger within the Union, to sue out a
writ of habeas corpus. This right is given not only by English law
but also by the Roman-Dutch law.
(De libero homine exhibendo.
Voet 43.29.)
'Prima facie, therefore, every person arrested by the warrant of the
Minister, or by any other person, is entitled to ask this Court for his
release, and this Court is bound to grant it unless there is some lawful
cause for his detention.'
It might have been thought that no other judgment was
possible on the facts before the Court. But Mr. May raises three
points which he says 'could have been raised by the State ir.this
case:
1. That Ganyile had been committed to gaol in the Transkei on
26th August, 1961, by a lawful warrant issued by the Minister;
2. that there was a lawful banishment order in existence; and
3. that as Ganyile had been lawfully banished or deported to
Frenchdale and had escaped from there, thus committing a criminal
offence, the matter had become a 'criminal matter' and the Eastern
Cape Division had thus no jurisdiction to consider an appeal from
the refusal of habeas corpus.
41962 (1) S.A. 647 (E) at 652.
5 At the foot of p. 651.
6 1916 T.P.D. 274 at 276.
HABEAS CORPUS PROCEDURE IN SOUTH AFRICA
285
Mr. May presumably means that these points could have been raised
successfully as an answer by the respondents to the application. It
is submitted, however, that none of these points could have been
properly raised and that none of them would have provided a reply
to the application. Adequate consideration of these points requires
some general discussion of South African practice in habeas corpus
and the nature of habeas corpus proceedings.
The jurisdiction exercised by the Supreme Court in South Africa
to grant the remedy of habeas corpus is derived from the RomanDutch interdictum de homine libero exhibendo, which is dealt with
by Voet in his title 43.29. This is in turn founded on the Praetor's
Edict as set out in Digest 43.29. According to Voet the interdict
as to the production of the free human being 'is granted to anyone
from among the people, but especially to him or her who is concerned
in the matter, though he or she is a ward or a woman. . . . It lies
against him who in ill fraud [dolo malo] keeps under restraint and
withholds a free human being without just cause, although the very
This.interdict
.
person withheld is unaware of his own status..
aims at the free person being produced, that is to say being brought
forward into the public eye, and an opportunity afforded of seeing
and touching the person.'7 In modern law by judicial interpretation
the scope of this writ has been extended to provide a remedy for
any unlawful detention whether or not effected dolo malo and the
English term 'habeas corpus' is commonly used to describe the
remedy.'
As appears from this passage in Voet, the remedy lies not only
against State officials but against any individual who is alleged to
be wrongfully detaining another. And it lies at the suit of any
person, whether directly interested or not, even one (such as a Minor)
who does not normally have locus standi in judicio.9 And the production of 'the body' is an essential feature of the procedure.
Although in Ganyile's case the order granted by the Eastern Cape
Division did not specifically refer to the production of the detained
person in court, an order to do so is an established and almost
invariable feature of South African orders of habeas corpus. The
procedure followed is that application is made (usually by petition)
either on notice or in cases of urgency ex parte, for a rule nisi.
7 Gane's translation, VI, pp. 528-9. Italics supplied.
s See Hahlo and Kahn, The Union of South Africa: The Development of its Laws
and Constitution (1960),
p.
137.
VerLoren van Thernaat, Staatlreg (1956),
pp. 129-30, makes the interesting suggestion that the English Habeas Corpus Acts of
1679 and 1816 form part of our common law.
9 In In re Cakijana and Tobela (1908) 29 N.L.R. 193 the Natal Court, basing its
ruling on this passage, allowed Miss Harriette Colenso to apply on behalf of two
Zulus detained during the Bombata rebellion. See at p. 201.
286
THE SOUTH AFRICAN LAW JOURNAL
Notwithstanding the general principle that all imprisonment is
prima facie unlawful and must be justified, 0 it is necessary to show
prima facie grounds for believing that the detention is unlawful."
If such grounds are showin to exist a rule issues calling upon the
respondent to produce the bodly of the detained person before the
court at a time to be fixed and then and there to show cause why
that person should not be released from custody. See In re Willem
Kok; In re Marechane;13 Tonge v. Governor of Johannesburg
Gaol; 4 Li Kui Yu v. Superintendent of Labourers;'5 Cebeculu v.
Peppler N.O.;'6 Kazee v. PrincipalImmigration Officer;'7 Hooper v.
Superintendent, Johannesburg Gaol (1);1s Ex parte Hathorn;'9
Mawo v. Pepler N.O.2 ° In addition to this long and respectable
body of authority, reference should be made to two series of
unreported cases heard in the Transvaal Provincial Division in 1959
and in the Witwatersrand Local Division in 1960. During 1959
numerous habeas corpus orders were granted by judges of the Transvaal Provincial Division at the suit of friends or relatives of Natives
who were alleged to be wrongfully detained against their will by
private employers of labour. 2' The other series of applications was
made to Ludorf J. in the Witwatersrand Local Division on 30th
March, 1960, on behalf of persons detained by the Police in reliance
on Emergency Regulations made under the Public Safety Act, 1953.
The regulations had not been duly promulgated at the time of the
arrest and the detained persons were ordered to be released. The
case of Ex parte Lang' 2 may be referred to as typical of these
applications.
The authorities cited, including the unreported cases referred to,
amply illustrate the nature of the South African procedure and do
so in a manner which is particularly relevant in the present context.
The writ of habeas corpus is intended to be, in Lord Coke's words,
festinum remedium.23 The authorities referred to exemplify the
speed and simplicity of the South African practice. The following
10 See Principal Immigration Officer v. Narayansamy, 1916 T.P.D. 274; Liversidge
v. Anderson 11942] A.C. 206 at 245, per Lord Atkin.
"1This is in accordance with English practice. The writ is a writ 'of course', but
not 'of right'. See Halsbury, XI (3rd ed.), pp. 26-7. Cf. Liversidge v. Anderson
[1942) A.C. 206. For South African law, see In re Willem Kok, 1879 Buch. 45 at
60; In re Marechane (1882) 1 S.A.R. 27 at 31; Ex parte Zimba (1890) 7 S.C. 364.
12 1879 Buch. 45 at 60-1.
13 (1882) 1 S.A.R. 27 at 32.
14 1903 T.H. 393 at 395.
15 1906 T.S. 181.
16 1947 (4) S.A. 580 (W).
17 1954 (3) S.A. 759 (W) at 761.
Is 1958 (2) S.A. 152 (W).
191960 (2) S.A. 767 (D) at 768.
20 1961 (4) S.A. 806 (C) at 807.
21 Reference may be made as typical examples to Sadika v. Potgieter, 29th April,
1959; Mahloane v. Feldt, 21st May, 1959; Atem bu v. Botha, lth June, 1959.
22
No. 366 of 1960.
2s See Cox v. Hakes (1890) 15 App. Cas. 506 at 515.
HABEAS CORPUS PROCEDURE IN SOUTH AFRICA
287
procedural points may be derived from the authorities, particularly
from the more recent ones:
(a) The applications are usually heard by a single judge.
(b) They are heard in the civil divisions of the court and not in
criminal sessions.
(c) As matters involving personal liberty, they are usually given
priority over other matters on the roll.
(d) The return day is made as short as possible (sometimes a
matter of hours after the issue of the rule).24
(e) The rule may, if reasons of urgency or even convenience
25
require it, issue ex parte.
(f) Although replying affidavits are frequently filed, in proper
cases the courts may hear viva voce evidence on the return day and
dispose of the matter summarily.
The English writ of habeas corpus ad subjiciendum is an ancient
common law writ which has been referred back to the provisions
of the Magna Charta, but the modern English practice is founded
on the Habeas Corpus"Act, 1679, as extended by the provisions of
the Habeas Corpus Act, 1816. The provisions of the Act of 1679,
which are set out in In re Hastings (No. 2),26 show that there is a
clear parallelism between the Roman-Dutch and the English remedy,
the most striking resemblance of course being the necessity of
physically producing the body of the restrained person in open
court. It may be indeed that the English common law writ was
founded on the Praetor's Edict, as was suggested by Barry J.P. in
27
Abner Major v. John Makettra.
24 In Ex parte Lang (supra), Ludorf J. granted a rule nisi in the traditional form
at 7 a.m. returnable the same day at 10 a.m. After argument Lang was released at
1 p.m. During the course of that day the learned Judge granted no fewer than
sixteen separate orders of release, some of them in respect of several detainees. In
Ex parte Hathorn, 1960 (2) S.A. 767 (D), Henochsberg J. at 2.45 p.m. on
31st March granted the applicant an order ditecting the respondents to produce the
person of her husband in court at 4.30 p.m. the same afternoon. On the return of
the rule the applicant's husband was present in court and oral evidence was heard
to establish the circumstances under which he was arrested. In Ganyile's case
de Villiers J.P. commented adversely on the fact that Wynne J. had reserved judgment
from 13th October to l1th December. The Eastern Cape Division granted a festinum
remedium in that the appeal was heard and disposed of on 15th December. However,
the rule issued by the Eastern Cape Division was made returnable only on 18th
January.
25 In most of the cases heard in the Transvaal Provincial Division in 1959 rules
were issued without notice to the respondent.
26 [1959] 1 Q.B. 358 at 367.
27 (1880) 1 E.D.C. 47 at 55.
Digest 43.29.3.8 reads: 'Ait praetor: exhibeas. Exhibere est in publicum producere
et videndi tangendique hominis facultatem praebere: proprie autem exhibere est extra
secretum habere.'
Under the Act of 1679 the gaoler is directed to 'bring or cause to be brought the
body of the said party so committed or restrained unto and before the judges or
justices of the said court from whence the said writ shall issue, in open court ....
288
THE SOUTH AFRICAN LAW JOURNAL
Although it has been said that even in the days of technical
pleading in England 'no informality was allowed to prevent the
substantial question of the right of the subject to his liberty being
heard and determined',"8 habeas corpus in England (as in the case
of the other prerogative writs) is subject to certain technicalities
of procedure. In particular, the right of appeal in habeas corpus in
England in the past at least presented procedural complications, the
historical basis of which has been explained by Lord Goddard in
an article in (1949) 65 Law Quarterly Review 30. Although the
similarities between habeas corpus and the equivalent South African
remedy have long been recognized, and although our courts have
derived assistance from the English authorities, 29 these technicalities,
it is submitted, form no part of our law.
With these preliminary observations one may turn to a consideration of Mr. May's three points. It will be convenient to begin with
his third point, namely the jurisdiction of the Eastern Cape Division
to hear the appeal.
A.
APPEAL JURISDICTION IN HABEAS CORPUS
Before 1960 the English rule was that no appeal lay from the
refusal of a writ of habeas corpus 'in a criminal cause or matter'."
The rule was statutory and derived from section 31(1) (a) of the
Supreme Court of Judicature (Consolidation) Act, 1925,"i which
provided:
'No appeal shall lie . . . except as provided by the Criminal Appeal
Act, 1907, or this Act, from any judgment of the High Court in any
criminal cause or matter.'
Mr. May (without referring to the statutory basis of the 'English
rule) submits that because Ganyile by escaping from Frenchdale had
admittedly committed a criminal offence, the matter 'had become
a criminal matter'. He refers to Lord Wright's definition of 'criminal
cause or matter' in the leading case of Amand v. Home Secretary:"
'If the cause or matter is one which, if carried to its conclusion,
might result in the conviction of the person charged and in a sentence
of some punishment, such as imprisonment or fine, it is a "criminal
cause or matter".'
28
Per Lord Halsbury in Cox v. Hakes (1890)
15 App. Cas. 506 at 514.
29 See, e.g., In re Will m Kok, 1879 Buch. 45 at 64; In re Cakijana and Tobela
(1908) 29 N.L.R. 193 at 198-9.
30 An appeal now lies, by virtue of sec. 15 of the Administration of Justice Act,
1960 (8 & 9 Eliz. II, c. 65). See Zacharia v. Republic of Cyprus [1962] 2 W.L.R.
1163 (H.L.).
31
after
were
32
15 & 16 Geo. V, c. 49. By the Administration of Justice Act, 1960, 3rd Schedule,
the words 'this Act' the words 'or the Administration of Justice Act, 1960'
added.
[19431 A.C. 147 at 162.
HABEAS CORPUS PROCEDURE IN
SOUTH AFRICA
289
He then goes on to say that the following words of Lord Wright"3
can be applied to 'any of the orders made against Ganyile': 34
'Every order made in such a cause or matter [e.g. a banishment order]
. . . is an order in a criminal cause or matter, even though the order,
taken by itself, is neutral in character and might equally have been
made in a cause or matter which is not criminal.'
The words 'e.g. a banishment order' are of course an interpolation
by the author. And it is clear that the 'order' to which Lord Wright
was referring was the order made in the habeas corpus application
itself. Consequently, although this is a field in which a South
African lawyer must tread warily, one may take leave to doubt
whether if the present case had, been heard by an English court it
would have been held that the order made by Wynne J. was an
order in a criminal cause or matter. It must be borne in mind that
habeas corpus proceedings in England frequently arise out of
criminal proceedings, for example by way of challenging the jurisdiction of an inferior criminal tribunal or even as a mode of obtaining
bail. Thus in Amand's case itself the application was concerned with
the issue of Amand's liability to prosecution by a Netherlands
military tribunal in England under the Allied Forces Act, 1940.
It is in relation to such proceedings that applications for a writ of
habeas corpus are said to be made in 'a criminal cause or matter'.
In In re Clifford and O'Sullivan,35 Lord Cave36 said that a criminal
cause or matter
'must involve the consideration of some charge of crime
. . and
that charge must have been preferred br be about to be preferred
before some court or judicial tribunal having or claiming jurisdiction
to impose punishment for the offence or alleged offence. . .. There
must be at least a charge of crime . . and a claim to criminal
jurisdiction.'
In Amand v. Home Secretary37 Lord Porter said that a matter might
be a criminal cause or matter provided that
'the appellant was put in jeopardy of having a criminal charge preferred against him before a judicial tribunal claiming jurisdiction to
impose punishment for the offence'.
Viscount Simon L.C. 3s said that a matter is criminal
'if [it] is one the direct outcome of which may be the trial of the
applicant and his possible punishment
for an alleged offence by a
court claiming jurisdiction'.
33At 162.
34 There appears to have been only one such order under sec. 5 of the Native Administration Act, 1927.
35 (1921] 2 A.C. 570.
31At 580.
37[1943] A.C. 147 at 165-6.
38 At 156.
the banishment order made
290
THE SOUTH AFRICAN LAW JOURNAL
And Lord Wright 39 made it clear that the test is whether the dismissal
of the application will have as its outcome the prosecution of the
applicant.
It is difficult to understand on these criteria how the application
in the case of Ganyile can be said to have been a criminal matter.
It could not be said that the direct outcome of the proceedings before
Wynne J. might have been the prosecution of Ganyile and his
possible punishment, as the jurisdiction 'of any court to try him
was not in issue. Far from any court having claimed jurisdiction
to do so, the complaint made was that he had been detained without
being charged before any court: In the words of the Court of
Appeal in R. v. Justices of the Appeals Committee of London Quarter
Sessions,40 'The English cases show that the form of the proceedings
is the test'. Compare Lord Wright in Amand's case: 4 'The word
"matter" does not refer to the subject-matter of the proceeding,
but to the proceeding itself.' In Ganyile's case there were no proceedings at all, let alone criminal proceedings, from which the
application derived. It was- a case of allegedly unlawful detention
without charge and it is submitted that had such an application been
made to and dismissed by an English court, there is no reason to
believe that an appeal would not have been entertained.
However, it is really unnecessary to consider whether Ganyile's
case was a 'criminal cause or matter'. The limitation on the criminal
appeals jurisdiction of the Eastern Cape Division does not derive
from the English statute, but from the simpler provisions of section
362(1) of the Criminal Procedure Act, 1955,42 which reads:
'In respect of appeals and questions of law reserved in connection
with criminal cases dealt with by a provincial or local division of the
Supreme Court, or a special criminal court, the court of appeal shall
be the Appellate Division of the Supreme Court.'
There is no definition in the Act of 'criminal case', but it presumably means a criminal case brought before a criminal court in
terms of the Criminal Procedure Act. There is no reason to give
it any wider connotation. Even if the outcome of proceedings may
be to put the applicant in jeopardy of a criminal prosecution, the
case is not necessarily a criminal one. This is illustrated by numerous
cases under section 102 of the General Law Amendment Act, 193 5 43
(now replaced by section 19(1) (c) of the Supreme Court Act,
195944) in which declaratory orders have been sought against the
Attorney-General in matters in which the direct issue is whether the
applicant's conduct has incurred criminal liability. The direct result
At 162.
At 160.
43 Act No. 46 of 1935.
39
41
[1946] K.B. 176 at 184.
Act No. 56 of 1955.
" Act No. 59 of 1959:
40
42
HABEAS CORPUS PROCEDURE IN SOUTH AFRICA
21
of such an application may be a ruling that the applicant has committed a criminal offence. Yet there is no doubt that such proceedings are not criminal but civil proceedings.4"
Moreover, the nature of habeas corpus proceedings in South Africa
is such as to make it clear that they have no element in them of a
criminal case. Habeas corpus applications are not normally brought
in South Africa to review proceedings in inferior criminal tribunals
as there is ample statutory provision for such review. The procedure
in habeas corpus is the same whether the respondents are officers of
State or private individuals. The procedure is not laid down in the
Criminal Procedure Act nor in any other statute relating to criminal
jurisdiction. In criminal matters in South Africa costs are not
awarded save in exceptional cases provided for by statute. In habeas
corpus proceedings costs normally follow the event, as in the case
of any other civil proceedings. 4" The applications are heard in civil
divisions of the courts and the Attorney-General is not necessarily
cited or represented.
It is submitted, therefore, that the applicant in Ganyile's case had
the same rights of appeal as any applicant in civil proceedings and
that the Eastern Cape Division had jurisdiction to hear the appeal.
It follows.from what has been said above that other English rules
of procedure relating to appeals in habeas corpus proceedings,
although more favourable to the subject, also do not apply in South
Africa. The most important of these rules was the rule that there
is no appeal from the grant of a liberation order.47 As Lord Goddard
demonstrated in the article above referred to, the reason for this
rule was not merely the law's anxiety to protect the liberty of the
subject but 'quite another and highly technical reason'.
'The real reason for the finality of an order of discharge appears to
be that there was never any method of appeal from the judgment of
a superior court, until the Common Law Procedure Acts and Judicature Act gave one, except by means of proceedings
in Error; and
48
Error did not lie in the case of a prerogative writ.'
Consequently, there would appear to be no reason why the State
or any other respondent should not be entitled to appeal against the
grant of habeas corpus in South Africa, subject to the ordinary
rules relating to appeals.4 9
45 See Attorney-General of Natal v. Johnstone & Co., Ltd., 1946 A.D. 256 at 260,
262.
46 This was not always the case. See In re Willem Kok, 1879 Buch. 45 at 72.
4T See Cox v. Hakes (1890)
15 App. Cas. 506; Amand v. Home Secretary [1943]
A.C. 147 at 155. This rule, too, no longer applies. See sec. 15 of the Administration
of Justice Act, 1960 (8 & 9 Eliz. I, c. 65).
48'A Note on Habeas Corpus'
(1949)
65 L.Q.R. 30 at 35-6.
49 It is suggested, however, that as an order for the liberation of the detained person
is immediately effective, it would in no way be suspended by an appeal.
of State for Home Affairs v. O'Brien [1923] A.C. 603 at 610.
Cf. Secretary
292
THE SOUTH AFRICAN LAW JOURNAL
In Minister of the Interior v. Farmer,50 the respondent Minister
appealed to a full bench consisting of Curlewis, Ward and
Gregorowski JJ. against an order made by Mason J. releasing a
person detained as a prohibited immigrant. It was not suggested
that no appeal lay. 1 The English rule which before 1960 permitted
an applicant for habeas corpus to renew his application on the same
facts from court to court 52 would also, it is submitted, have no
application in this country where such a proceeding would be met
by a plea of res judicata. In Halsbury53 it is said that where the
liberty of the subject is concerned, appeal lies from any interlocutory
order or judgment without leave being required. One could find no
.basis for such an exception in South African procedure.
B.
THE EFFECT OF THE BANISHMENT
ORDER
Mr. May's second point was that as Ganyile had been lawfully
banished to Frenchdale, he was not entitled to claim his liberty
from a court in whose jurisdiction he was not entitled to be. Mr.
May relies in this connection on the case of Eliezer Zabrowsky v.
G.O.C. Palestine,5 4 and in particular the passage 55 in which Lord
Wright said:
'While the deportation order stands and its legality is not overruled
its effect is that Eliezer is required to leave and remain thereafter out
The order, indeed, so long as it remains in force
of Palestine..
renders it unlawful for Eliezer to seek to enter Palestine and no
court in Palestine has authority to require his production in that country
in defiance of an order lawfully made by its responsible Government.'
The facts and the ratio decidendi of Eliezer's case, however, do
not, with respect, provide any support for Mr. May's proposition.,
The essential facts of that case weYe that Eliezer had been banished
and deported from Palestine by an admittedly lawful order and
was being detained in Eritrea under military custody under an order
made there by the Military Government of Eritrea. Eliezer's father
had petitioned the Supreme Court of Palestine for an order in the
nature of habeas corpus to be directed to the respondents who were
officers of the Palestine Administration. On these facts the Palestine
Court had held that it was beyond its competence to decide on the
illegality of the detention in Eritrea, and the Judicial Committee
of the Privy Council upheld this judgment.
'What is asserted, is that the detention is exercised under the lawful
authority of the Eritrean Administration and the legality of the
50 1914 T.P.D. 130.
51 See also Principal Immigration Officer v. Narayansamy, 1916 T.P.D. 274.
52 See In re Hastings (No. 2) [19593 1 Q.B. 358; In re Hastings (No. 3)
[19593 Ch. 368.
53XI (3rd ed.), p. 50.
54 [19473 A.C. 246 (P.C.).
55
At 262.
HABEAS CORPUS PROCEDURE IN SOUTH AFRICA
7Y
detention must be judged by the law of the place of detention ...
Their Lordships have abstained from expressing any opinion of wha.
was done in Eritrea and in the Sudan. These matters are outside the
competence of the Palestinian court and therefore of this Board, which
is only a Court of Appeal to determine whether the respondents or
either of them have acted contrary to Palestinian law.' 56
There is no word in the advice of the Judicial Committee which
suggests that Eliezer would not have had the right to approach the
court had he been in Palestine and the case is no authority whatsoever
for the proposition that a person who has been banished from a
jurisdiction but who none the less is in fact within that jurisdiction
has no right to apply for habeas corpus. Eliezer's case might have
been in point had Ganyile complained to a judge of the Eastern
Cape Division in Grahamstown of an alleged wrongful detention
in Frenchdale. In such circumstances the court would possibly not
have ordered his production in Grahamstown, as to do so would
have conflicted with a lawful banishment order. Ganyile would
presumably have had to seek his remedy in such circumstances from
the division of the Supreme Court having jurisdiction over Frenchdale. But in the case actually before the Court the petitioner was
not asking that Ganyile be brought from outside into the jurisdiction.
The complaint was that he had been forcibly and against his will
carried into the jurisdiction and there detained.
If Ganyile had voluntarily entered the jurisdiction of the Court
in contravention of his banishment order, he could have been arrested
and criminally charged. Moreover, in terms of subsection (2) (b)
of section 5 of the Native Administration Act, 1927, he could have
been forcibly removed from the jurisdiction and could have been
lawfully subjected to such imprisonment or detention as must
inevitably accompany such a procedure. No other form of detention
would have been justifiable by reason merely of his breach of the
banishment order. There is no warrant in Eliezer's case nor in any
other South African or English case, as far as it has been possible
to ascertain, for the suggestion that a person who is in any area
in breach of a deportation order is ipso facto disentitled to complain
of any detention whatsoever. Indeed, it might well have been
thought that the proposition that a person who has been lawfully
deported blt who has thereafter been forcibly brought back into
the jurisdiction of a court by the authorities of the State and the:e
detained without charge, was not entitled to seek his liberty by
application to the Supreme Court, was unarguable.5 7
56 At 264.
5 Wynne J. had held that a person subject to a banishment order and found at
large within the Republic cannot have any prima facie right to claim his liberty from
[Continued on next page]
294
THE SOUTH AFRICAN LAW JOURNAL
It is submitted, therefore, that Eliezer's case is authority only for.
the somewhat self-evident propositions that the court will not order
the return to its jurisdiction of a person who has been lawfully
deported therefrom,5 s and that a court will not examine the legality
of a detention outside its area of jurisdiction by an authority also
outside its jurisdiction. However, in view of Mr. May's comment,
it is as well to repeat that the court has jurisdiction to examine the
legality of any and every detention within its area of jurisdiction
and that it will hear the complaint of any person within that area
whether a citizen or an alien and whatever his status.5" A banishment
order does not reduce the subject of it to the status of an outlaw.
In In re Marechane, ° Kotze C.J. said:
'The Court is bound to do equal justice to every individual within
its jurisdiction, without regard to colour or degree, except where in
the particular instance the law expressly provides the contrary.'
There is nothing in the Native Administration Act or any other
statute which provides the contrary in the present instance. Even
if the position of a South African citizen banished to a particular
part of the country under the Native Administration Act can be
equated with that of a prohibited immigrant, cases dealing with the
latter class of person make it clear that the detention of such persons
is permitted only for the purposes of their deportation and must
be strictly within the terms of the empowering statute."
[Note 57 continued]
the courts of the country. In support of the proposition he referred to Eliezer's case
(supra) and to the judgment of Farwell L.J. in R. v. Earl of Crewe: Ex parteSekgoine [1910] 2 K.B. 576. There appears, however, to be nothing in the judgment
of Farwell L.J: nor in the judgment of the other Lords Justices of Appeal which
supports the proposition of the learned Judge. The one ruling in Sekgome's case which
appears to have any relevance to the present case is the very different one that a
British court may grant habeas corpus not only to a British subject but to an alien
'detained in British territory. See [1910) 2 K.B. at 620.
58 The judgment of de Villiers C.J. in Fein and Cohen v. Colonial Government
(1906) 23 S.C. 750 was to the same effect.
59The instances of enemy aliens in time of war (see R. v. Bottrill: Ex parte
Kuechenmeister [1947] K.B. 41) and persons detained under martial law are only
apparent exceptions to this rule. The state of war or martial law may justify the
detention and provide a sufficient answer to the application. But the court will
hear the application and will decide whether a state of war in fact exists and whether
the detention is in fact an act of the military authorities. See In re Willem Kok
(supra); In re Cakijana and Tobela (supra); and the cases heard in the Cape
Supreme Court during the South African War and reported in 17 S.C. and 18 S.C.,
in particular R. v. Bekker (1900) 17 S.C. 340. The best discussions are to be found
in verLoren van Themaat, Staatsreg, pp. 136 ff.; R. S. Welsh, 'Martial Law' (1941)
58 S.A.L.J. 111.
60 (1882) 1 S.A.R. 27 at 31.
61 See, e.g., Hong Kong v. Attorney-General, 1910 T.P.D. 348; Aronowicz v.
Minister of the Interior, 1950 (1) S.A. 568 (A.D.). Detention for any other purpose
would be wrongful on the general principle that a power granted for one purpose
may not be used for a different purpose - van Eck N.O. v. Etna Stores, 1947 (2)
S.A. 984 (A.D.) at 997. Read in its context the dictum of Searle J. in Harneker v.
Gaol Superintendent, 1951 (3) S.A. 430 (C) at 435, that ' a prohibited immigrant
has no rights of liberty ' is not in conflict with this general principle.
HABEAS CORPUS PROCEDURE IN SOUTH AFRICA
295
It is therefore submitted that Mr. May's second point, too, is
misconceived and that the Eastern Cape Division was correct in
entertaining the application and in granting its order notwithstanding
the existence of the banishment order. Mr. May's comment, however, incidentally raises the question of the limits of the jurisdiction
of a court in habeas corpus in respect of a person detained outside
its area of jurisdiction. The question is indeed a difficult one and
the solutions here suggested to some of the problems which might
arise are purely tentative. It is submitted, however, that the position
appears to be as follows:
(a) If the person detained outside the jurisdiction was lawfully
deported therefrom, the court will not order his return to the
jurisdiction."2
(b) If the detainee was unlawfully deported from the court's
area of jurisdiction by a person amenable to the court's jurisdiction,
habeas corpus will issue and the respondent will be ordered to return
the detainee to the jurisdiction provided that the respondent is shown
still to have the detainee within his power. 63 The court will investigate the question whether the detainee is still in the possession of
the respondent, but if he is not the writ will not issue merely by
way of punishment of the respondent.
(c) Although the court of the defendant's domicile will
undoubtedly entertain an action for damages in respect of the delict
of foreign imprisonment committed abroad, it is doubtful whether
the rule stated in paragraph (b) will apply if the detention is in
a foreign State. The comity of nations may preclude the court
ordering the release of a person detained in a foreign country.64 But
it is submitted that the rule as stated in paragraph (b) would be
applied as between the different provincial jurisdictions within South
Africa.6
(d) Even if the person detained abroad is a citizen (or in South
Africa an incola of a particular province), the court will not issue
habeas corpus against a person not within its jurisdiction.66 It may
be, indeed, that the court will not make an order against the
62 Eliezer Zabrowsky v. G.O.C. Palestine [1947) A.C. 246 (P.C.); Fein and Cohen
v. Colonial Government (1906) 23 S.C. 750.
63 See Li Kui Yu v. Superintendent of Labourers, 1906 T.S. 181 at 185, 191;
In re Cakijana and Tobela (1908) 29 N.L.R. 193 at 197; Barnardo v. Ford (Gossage's
case) [1892) A.C. 326; R. v. Secretary of State for Home Affairs: Ex parte O'Brien
L19 2 3) 2 K.B. 361.
64 See Ex parte Mwenya [19601 1 Q.B. 241 at 277,'305.
65 In the four cases cited in note 63 the detained persons had been removed
(respectively) to Natal, Zululand, Canada and the Irish Free State.
10 H.C.G. 90; R. v. Pinckney
66 See Sekgome Letsolathebe v. Panzera .(1906)
[1904) 2 K.B. 84.
296
THE SOUTH AFRICAN LAW JOURNAL
respondent who has detained a person outside the jurisdiction unless
the respondent was domiciled within the jurisdiction. His temporary
67
presence therein may be insufficient.
(e) If the person detained outside the area of jurisdict ion is not
a citizen' (or an incola of the province) and he was at no time
detained within the area of jurisdiction, it is probable that the court
will not exercise its jurisdiction even if the respondent is domiciled
In South Africa a provincial division in these circumtherein.6
stances might well require the application to be made' to the division
having jurisdiction over the place of detention. It is submitted,
however, that this would not invariably be the rule. If it is prima
facie shown that a person is detained by the respondent within the
Republic at a place unknown, it is suggested that the division of
the respondent's domicile would exercise jurisdiction to grant habeas
cOrpjus.69
C. TIHE
EXISTENCE OF A LAWFUL WARRANT
Mr. May's third point was that Ganyile had been committed to
gaol in the Transkei on 26th August, 1961, by a lawful warrant
issued by' 'the Minister'. This point is, with respect, difficult to
understand. The existence of a lawful warrant is no doubt the
clearest answer to an application for habeas corpus. But there is
nothing in the report of the case which suggests the existence of
any such warrant. There is no mention of it in the judgment of
the Eastern Cape Division nor apparently in the judgment of Wynne
J. Nor is it clear whether the Minister to whom Mr. May refers
is the first respondent or the Minister for Bantu Affairs. Wynne J.
apparently drew what he referred to as 'the inescapable inference'
that Ganyile, if in the Transkei, had been detained under the
Emergency Regulations which were then in force in the Transkei.
But de Villiers J.P. said: 70
'I can find no justification for any such inference or for holding
as an inescapable inference that Ganyile is being held under the
Emergency Regulations. Mr. Kannemeyer has pointed out to us that
Ganyile was deported and detained in Frenchdale before the Emergency
67 See per Lord Parker C.J. in Ex parte Mwenya [19601 1 Q.B.* 241 at 280.
18 See Sekgome Letsolathebe v. Panzera (1906) 10 H.C.G. 90.
69 In England the Queen's Bench Division will issue a writ of habeas corpus in
respect of any person detained in any place under the subjection of the Crown unless
there is at that place a court with authority to grant habeas corpus and ensure its due
execution: Habeas Corpus Act, 1862 (25 & 26 Vict., c. 20). In Ex parte Mwenya
[1960] 1 Q.B. 241, it was held that the Queen's Bench Division had jurisdiction to
issue a writ of habeas corpus in respect of a detention in a British protectorate. Before
the passing of the 1862 Act the Queen's Bench Division had issued a writ of habeas
corpus in respect of a detention in Canada: Ex parte Andersoo (1861) 3 E. & E. 487.
70 At 653.
HABEAS CORPUS PROCEDURE IN SOUTH AFRICA
Z7
Regulations came into operation in the Transkei, that he escaped and
went to Basutoland and prima facie was taken from there and has
been under detention ever since. Prima facie, therefore, he had no
opportunity of committing an offence which would justify action
under the Emergency Regulations resulting in his detention.'
The Eastern Cape Division had to consider only the issue of a
rule nisi. At that stage the Court had no evidence of any warrant,
whether lawful or otherwise. Indeed, there had been no admission
by the respondents that Ganyile was in fact detained.
But even if on the return day the State had chosen to justify the
detention of Ganyile by producing a warrant, that would not necessarily have been an answer to the proceedings. The court on a habeas
corpus had jurisdiction to inquire into not merely the existence but
the validity of a warrant of commitment. And the validity of a
warrant correct on its face may be traversed and put in issue. 7'
Whether or not there was any warrant issued and if so whether it
was lawfully issued is a question which was presumably within the
knowledge of the legal advisers of the State. They are hardly likely
to have overlooked the existence of such a warrant and one 'must
assume that the defence suggested by Mr. May was in fact not open
to them.
It is submitted, therefore, that on the facts before it the Court
correctly entertained and upheld the appeal from the judgment of
Wynne J. and that the criticism of the Court (which according to
Mr. May ought to have taken at least two of his three points mero
motu) is unjustified. It is submitted, further, that the implied
criticism of the State's legal advisers is even more unfortunate in
so far as it faults them for not having raised technical objections
to the exercise by the Court of one of its most important functions,
namely, the protection of the liberty of the subject against executive
power. The fact that in due course the State released Ganyile
and did not appear to raise technical objections of the type adumbrated by*Mr. May is surely a matter for congratulation rather than
criticism. If, indeed, the State's legal representatives had adopted
the approach suggested by Mr. May, criticism might have been called
for. In this connection the remarks directed to Crown counsel by
Sellers L.J. in Ex parte Mwenya 72 are very much in point:
'The writ of habeas corpus ad subjiciendum is, to be
preserved, and should be available and so wed that it may
to deserve undiminished the high praise which so often,
many sources, it has received. I waited in yain, in the
71 See Greene v. Secretary of State for Home Affairs [1942]
Principal Immigration Officer, 1954 (3)
Johannesburg Gaol (1), 1958 (2)
72 [19601 1 Q.B. 241 at 311.
treasured and
ever continue
and from so
course of the
A.C. 284; Kazee v.
S.A. 759 (W); Hooper v. Superintendent,
S.A. 152 (W).
THE SOUTH AFRICAN LAW JOURNAL
298
argument on behalf of the Crown, to hear an endeavour to support
the widest application of the writ, and an expression of regret or
reluctance that it was felt to be incumbent to point out to the court
such obstacles as may be thought to be in the way of iti unfettered
use.'
The attitude of the Eastern Cape Division as expressed by de
Villiers J.P. (in whose judgment Jennett and O'Hagan JJ. concurred) was that
, . . . the Supreme Court is the protector of the rights of the individual
citizen, and will protect him against unlawful action by the executive
in all its branches in the same way as in England the Supreme Court
From
will protect the British subject, even from the Crown..
a practical point of view . . . I do not think the Court should be
astute to find objections at this stage to the relief claimed. The Court
should rather be astute to find a means of exercising its function and
jurisdiction in7 3the protection of a citizen from a potential inroad
on his liberty.'
This approach, with respect, is in accordance with the highest
traditions of the South African judiciary and again surely calls
for praise rather than criticism. If one may, without offence, para74
one
phrase the words of Lord Atkin in Liversidge v. Anderson
views with apprehension the attitude of constitutional lawyers who
'when face to face with claims involving the liberty of the subject
show themselves more executive-minded than the executive'.
It was Lord Atkin who, in giving the advice of the Judicial
75
Committee in Eshugbayi Eleko v. Government of Nigeria, said:
'In accordance with British' jurisprudence no member of the executive
can interfere with the liberty or property of a British subject except
on the condition that he can support the legality of his action before
a court of justice. And it is .the tradition of British jdstice that
judges should not shrink from deciding such issues in the face of
the executive.'
It is a cause of satisfaction that these words may be applied equally
to the tradition of South African justice.
S. KENTRIDGEF
73 At 653-4.
4 [1942] A.C. 206 at 244.
75 [i931i A.C. 662 at 670.
* B.A.(Rand), M.A.(Oxon.); Advocate of the Supreme Court of South Africa;
member of the Johannesburg Bar.